Defilement cases not being prosecuted ‘vigorously’

By Wahome Thuku

Rape is a serious crime. Thanks to the Sexual Offences Act, a law crafted by former Nominated MP Njoki Ndung’u (now Supreme Court judge), the minimum sentence for defilement is now 15 years in jail.

Chief Justice Willy Mutunga has also said the judiciary would consider fast tracking sexual offences.

But implementation of the law appears to have been tardy, at best.

Bramuel Omondi had an affair with a schoolgirl and they even got a child. That was in Nambale, western Kenya.

On July 22, 2008 Omondi met the girl (who was then mother to his child) at a place called Kijabe as she was riding a bicycle on her way home.

He took the bicycle from her. But a passer-by, Mr Charles Musungu, persuaded Omondi to give her back the bike.

As the girl was about to ride away Omondi allegedly seized her by the neck and dragged her into a sugarcane farm, tore her clothes and raped her.

He tried to strangle her and bit off the tip of her tongue. He also injured her in the stomach.

According to the girl, that was at around 5pm.

The girl went home and reported the incident to her parents. They took her to Nambale Health Centre and were referred to Busia District Hospital.

There she received treatment.

Defilement

The incident was reported at the Nambale Police Patrol Base.

On August 1, 2008, Omondi was arrested and charged before Busia Principal Magistrate Eric Obaga with two counts of defilement and wounding.

The prosecution called six witnesses. First on the stand was the girl who testified about her relationship with Omondi and narrated her ordeal.

She maintained she was defiled on July 22.

The girl’s mother said her daughter came home at around 6pm bleeding from the mouth and told them that Omondi had bitten her tongue. The mother then took her to hospital.

The mother also said she reported the matter at the Nambale Police Station on July 29.

The third witness, Musungu, told the court that on the said day, he met the girl and the accused on the road.

The girl asked him to help her recover a bicycle from Omondi. He successfully intervened and went away.

He later heard the girl had been taken to hospital after being defiled by Omondi.

The fourth witness was Rev Fredrick Ikasi, who said on July 24, he saw the girl and the mother at Busia Hospital where the girl had been admitted with a mouth injury.

The mother requested him to report the matter to the police and he did so on the same day.

Police Constable Evans Barasa said he received a report from Rev Ikasi on July 24.

He went to the hospital and gave the girl a P3 form. The girl was discharged on July 28 and the next day, she went to the police station to record her statement. PC Baraza produced her birth certificate showing she was born on December 29, 1991.

P3 form

The last witness, Mr George Wanga, a clinical officer at Busia Hospital, said on July 24, he signed two P3 forms for the wounding and the defilement.

He said the girl’s tongue was partially amputated. She had injuries on the neck and lower lips, and multiple bruises on the hands and lower abdomen that were three-hours old.

He gave details of sexual injuries and concluded that the girl had been defiled.

In his defence, Omondi said he met the girl on July 22 and she told him their child was sick. He accompanied her home but her furious mother chased him away.

He gave the girl Sh300 for medicine and left. He denied having defiled or assaulted her.

The magistrate doubted whether the girl had been injured as there were no records showing she was ever treated or admitted in any hospital.

He, however, convicted Omondi for defilement and sentenced him to 15 years in jail.

Omondi appealed to the High Court in Busia.

The case was heard by High Court Judge David Onyancha.

The judge said there was no evidence on record that the girl was defiled on July 22. The evidence confirmed she was injured on July 24.

And if she was defiled, it could only be on July 24. So evidence indicating the earlier date should not have been used as basis for the conviction.

Onyancha observed that the story about defilement only came from the girl as there was no eyewitness.

"The date could only come from the complainant and be supported by her mother who clearly had close interest in the matter. The mother had reason to hate the appellant and be ready to fix him, most likely for impregnating her daughter and then appearing to follow her after she got a child, but was now back to school."

The judge also questioned why Mr Wanga had filled two P3 forms.

"One P3 form has space enough to have accommodated the wounding and the defilement injuries," he said. "The only possible explanation was that they were not filled the same day or that the clinical officer was persuaded later to fill another P3 form to cover allegations of defilement."

The judge then accepted Omondi’s version of events. "The appellant’s story looked more likely and more acceptable and credible."

Cooked story

He said the girl’s story about defilement looked "more cooked" than the wounding story and should not have been accepted.

"It’s unfortunate the clinical officer allowed himself to be swallowed in it," he added, dismissing her as an unreliable witness.

Last month, Justice Onyancha quashed the conviction and set aside the 15-year sentence. Omondi was free.

However, the lingering question is even if Omondi was innocent in this defilement case, shouldn’t the evidence of siring a child with an underage schoolgirl have been grounds for a defilement charge?

The writer is a court reporter with the Standard Group

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